Overlawyered

One disadvantage (or perhaps advantage) of being an attorney who studies consumer class actions is that one sees violations all the time. (Indeed, I have to laugh at those who claim that my opinion is dictated by the below-government-pay salary I get from AEI. I could make more money if AEI fired me and I was forced to hang a shingle and do nothing but bring lawsuits on technical violations of the law I see without especially looking for them. Whatever is motivating me to spend weekends reading and writing about civil-justice-reform related issues, it's not money.)

So, on December 23, Slim and I go to eat at one of our favorite restaurants, a family business in Houston we learned about from blogger Tom Kirkendall. We pay by credit card, collect the receipt, think nothing of it. A few days later, we notice that the credit card receipt included the expiration date of the credit card. This is harmless—but many lawyers have argued that it is a technical violation of the identity-theft-prevention law FACTA (Oct. 31), which permits recovery for $100 to $1000 per violation, which would be a potentially bankrupting class action if someone were to bring such a suit. I look up the owner's e-mail address, write him a polite note noting the potential problem and the possible pitfalls portending, he (presumably) checks with his attorney, and sends me an e-mail thanking me profusely and offering me dinner on the house next time I'm in town—though I'd be inclined to pay anyway. I'm satisfied and happy, and don't even think of bringing suit.

On the other hand, I hate telemarketers, especially since I often work at home, and a telemarketing call can interrupt a productive train of thought. Telemarketing is invariably a rip-off: the expense and hit-rate of telemarketing is such that anything sold through this method is either (a) ridiculously overpriced to cover the sales expense or (b) a charity that hired a telemarketer at something like an 80% commission so that if you give money, it's going to the telemarketer not to the charity. I immediately signed up for the FTC Do Not Call Registry the minute it went live. So, when nevertheless I twice received automated telemarketing calls from a food delivery service on December 31 and January 3, I was furious.

The Virginia Telephone Privacy Protection Act permits recovery of $500/violation plus attorneys' fees for illegally calling someone on the Do Not Call list. I call the business to complain, and they are rude and unapologetic—and deceitful, claiming that if I have a complaint, I should go to the Better Business Bureau (who has no power to do anything about this). I e-mail to complain, noting the particular violation of the law, and, several days later, get an unapologetic e-mail back stating that they hired another business to give them a list of phone numbers, and they therefore have no liability.

I write back, explaining that they have greatly misunderstood the concept of an indemnification clause or of a strict-liability statute. Two days later, I get an offer letter from an attorney, again disclaiming liability because the violation wasn't "willful" (neither true under the legal definition nor relevant under the statute), but providing an exploding offer of $75. I suggest that, since I'm completely in the right, and they're completely in wrong, a tiny fraction of mandatory statutory damages isn't a good faith offer. The attorney wrote back two days later with a $150 offer, and the ball's in my court to decide by Monday. They still haven't apologized, offering nothing more than "regret." I've offered to settle for $250, which is about the value of the time I've wasted spending complaining about it, though that would go up if I have to waste more time bringing it to court.

Should I sue for $1000 plus attorneys' fees ($3000 for two willful violations, if I were inclined to make the argument under Safeco v. Burr)? Or should I just take the offer should they refuse to up it?